Bondz v. Pennsylvania Co.

OpimoN, Mr. Chief Justice Paxson: The plaintiff was nonsuited in the court below, and the only assignment of error is that the court erred in refusing to take off the nonsuit. Unfortunately for the plaintiff there was no exception to this refusal. This may seem unimportant, but in point of fact it is vital. The plain reason is, that without such exception the evidence is not and cannot come before us. Without the evidence, it is impossible for us to say whether the nonsuit was properly entered. The office of an exception, as we have repeatedly said, is to bring upon the record something which, without an exception, forms no part of it. The notes of trial taken below constitute no part of the record, unless made so in the manner pointed out by law. “ There are but three modes,” said Agne"W, J., in Miller v. Hershey, 59 Pa. 64, “ in which facts arising upon the evidence can find their way into the record, — by the finding of a jury, which is a special verdict; by the agreement of the parties, called a case stated; and by the certificate of the court contained in a bill of exceptions.” An exception brings up so much of the evidence as bears upon the particular exception. Where there is a nonsuit, an exception to the refusal of the court to take it off brings up the whole of the evidence, for the reason that wrn must consider all the plaintiff’s evidence to de [156] termine whether the nonsuit was properly entered. Hence the value of a bill of exceptions. It determines precisely what the evidence was. The notes of the respective counsel may, and often do, differ materially as to the evidence. But, when a bill of exceptions has been settled by the trial judge, upon notice to the opposite counsel, there is no room for' dispute, and we have a right to accept the certificate of the judge as verity. Without such certificate, we have no means of knowing what the evidence upon the trial really was. In the case in hand, there was no bill of exceptions, and, as a necessary and logical result, the evidence is not before us. There is a mass of evidence printed in the paper-book of appellant, but, under all the authorities, we have no right even to look at it. Where there is no bill of exceptions, we are not at liberty to look at the evidence: Tasker v. Sheldon, 115 Pa. 107. We are aware that a careless practice has grown up in this respect, but we are not disposed to encourage it. In some instances, these matters are not called to our attention, and pass without comment; but, when the point is made, we are compelled to enforce the rule. We do it with the less reluctance, in this instance, for the reason that the appellant’s case, as presented, is without merit. We are of opinion that, had an exception been taken, the judgment would have had to be affirmed. Judgment affirmed.